Someone sets up a trust for a loved one to control the distribution of assets, avoid the time and expense of public probate, protect beneficiaries from creditors or irresponsible spending, and provide for special needs. Trusts allow for specific, customized conditions on when and how money is used, ensuring long-term financial security for beneficiaries.
6 options for passing down your home
You have people who depend on you financially.
If you're financially responsible for family members, a trust can help ensure their needs are met without interruption. Trusts can also support unmet education funding needs or even a family business startup.
You generally should not put retirement accounts (IRAs, 401ks), life insurance policies, vehicles (cars, boats), UGMA/UTMA accounts, and some business interests into a trust due to tax issues, complications with titling, or existing beneficiary designations that work better outside the trust. Instead, name the trust as the beneficiary for retirement accounts and life insurance to control distribution, while other assets often transfer easily via beneficiary designations or a will.
The duration of a trust in California is governed by specific laws. One such law is the Rule Against Perpetuities. This rule generally limits the duration of a trust to 90 years. However, there are exceptions.
Here are four common missteps people make when setting up a trust—and how to avoid them.
Avoiding probate
Putting a home into a living or revocable trust can ease the emotional and financial demands on heirs by keeping this complex asset from the probate process. A lawyer can help your parents determine which type of trust will work best and how to avoid potential tax consequences.
The "5 by 5 rule" (or "5 and 5 power") in trusts allows a beneficiary to withdraw the greater of $5,000 or 5% of the trust's annual fair market value, whichever is higher, without triggering significant tax consequences, offering flexibility while preserving the trust's long-term integrity for the grantor's original purpose. If unused, the right lapses, but repeated lapses can have tax implications, so it's a strategic clause for asset management and tax planning.
Compared to wills, living trusts are considerably more time-consuming to establish, involve more ongoing maintenance, and are more trouble to modify. A lawyer-drafted trust typically costs more than a thousand dollars, though the cost will shrink dramatically if you use a self-help tool to make your own trust.
The three certainties of trust are essential legal requirements for a valid express trust, established in English law, ensuring clarity for enforceability: Certainty of Intention, meaning the creator clearly intended a trust, not a gift; Certainty of Subject Matter, requiring precise identification of the trust property; and Certainty of Objects, meaning the beneficiaries must be clearly defined.
Putting your house in trust doesn't protect assets outside of the trust from probate. So if you want to avoid probate completely, you may want to move your other assets into the trust as well.
Want to make your assets virtually untouchable by creditors and lawsuits? Equity stripping may be the answer. This advanced technique involves encumbering your assets with liens or mortgages held by friendly creditors, such as an LLC or trust you control.
Who Controls a Trust After Death? After the grantor's death, control of the trust transfers to the successor trustee named in the trust document. If the designated trustee is unwilling or unable to serve, the document may identify an alternate trustee.
Living trusts are revocable, meaning you remain in control of the assets and you are the legal owner until your death. Because you legally still own these assets, someone who wins a verdict against you can likely gain access to these assets.
So, who owns the property in a trust? The trust is the legal owner. The trustee holds the title and manages it, but always for the benefit of the beneficiaries. The trustor decides the terms, and beneficiaries enjoy the property or its benefits according to those terms.
If you die within 7 years of making a transfer into a trust your estate will have to pay Inheritance Tax at the full amount of 40%. This is instead of the reduced amount of 20% which is payable when the payment is made during your lifetime.